Keck v. Gross , 26 N.Y.S. 1111 ( 1894 )

Van Wyck, J.

This is an action on an undertaking given, in pursuance of sections 559 and 730 of the Code of Civil Procedure, on an order of arrest granted against this plaintiff in another action in which there was a judgment in favor of this plaintiff (the defendant therein) for costs. The defendants herein demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action. An order was granted giving plaintiff judgment on the demurrer as frivolous, in pursuance of section 537 of the Code of Civil Procedure. This is an appeal from that order.

We think the complaint sufficiently sets forth that the undertakirig was duly given in pursuance of section 559 of the Code of Civil Procedure on the order of arrest. . The failure of the plaintiff in the action in which the order of arrest was granted to have the undertaking marked approved by the judge will not relieve the sureties of responsibility thereon. Gopsill v. Decker, 4 Hun, 625 ; Candee v. Wilcox, 14 Wkly. Dig. 245. The party so arrested can resort, in the first instance, to the action on the undertaking, without pursuing-his remedy against the party procuring the arrest. Wilson v. Field, 14 Wkly. Dig. 378.

Order appealed from must be affirmed, with cost’s and disbursements to be taxed by the clerk.

Clement, Ch. J., concurs.

Order affirmed, with costs and disbursements.